from the cue-laughter-now dept

Last week, we mentioned Newegg, a company that has publicly declared it won't settle with patent trolls, fighting in court against the world's most litigious patent troll, Erich Spangenberg. If you'd bet that's a recipe for some courtroom drama, it appears you would have won that bet. Joe Mullin continues his excellent reporting from East Texas, and talks about Newegg breaking out some heavyweights in support of its argument that some guy named Mike Jones didn't actually invent the cryptography that made e-commerce possible. Among those appearing on behalf of Newegg were three names that I hope all of you already recognize: Whitfield Diffie, Ron Rivest and Ray Ozzie. If not, look them up, but suffice it to say Newegg has credibility on their side.

They also had Alan Eldredge, a guy who worked on the original Lotus Notes to talk about how they implemented everything in Jones' patent (using Ron Rivest's RC4) before Jones filed for it. The interesting tidbit there is that Eldredge wasn't your typical expert witness hired by one of the parties in the case:

Eldridge wasn't paid, as expert witnesses were—he came down to testify against the Jones patent out of a feeling of "civic responsibility," he said. He didn't know who the defendants in this case were until he was told. "I hadn't even heard of New Age until Saturday," said Eldridge at one point, as laughs were stifled in the courtroom.

From the sound of it, Diffie oozed credibility on the stand, as he should, and Mullin believed the jury was eating it up (for more details on the specifics of the testimony, read Mullin's full article linked above):

Diffie's testimony went on some time, but he seemed to have the jury in the palm of his hand. A few jurors laughed at his jokes and smiled, and the more serious ones were certainly focused on his testimony. After about two hours, Albright passed the witness.

Spangenberg's lawyer, Marc Fenster, apparently decided the way to respond to this incredibly credible witness (the dude invented public key cryptography!) was to... attack his credibility. First, he attacked his credentials. Diffie never completed a master's degree, nor has he held a full time academic position -- which, of course, doesn't even remotely matter for anything, but Fenster tried to use it to make him seem like a charlatan, leading up to a claim that Diffie didn't actually invent public key cryptography. But, of course, that's not actually true. This story is well known in cryptography circles and you can find variations of it online. The UK's equivalent of the NSA, GCHQ, more or less figured out much of the same thing, but kept the whole thing secret. Fenster referred to James Ellis of GCHQ, who had conceived a similar idea, but wasn't able to do the math. The math was done later at a time much closer to Diffie's efforts (the exact timing here is somewhat in dispute). However, as many people have pointed out, none of that much matters, because the folks at GCHQ did absolutely nothing with this, and from all accounts, they didn't even think it was anything important or special.

And, more importantly, none of that actually takes away from the stuff that matters here: all the important work happened long before Mike Jones got his patent, and Spangenberg's company TQP's claim that Jones' work enabled e-commerce still looks like complete bunk. Even if GCHQ had figured out public key cryptography before Diffie, it doesn't change the fact that his version is the one that made it well known, RSA's implementation made it work, and that's actually what made secure e-commerce possible, not anything from TQP's patent.

It appears that Newegg is so confident that it's going to win the case completely that it didn't even bother having its final witness take the stand. That witness was going to challenge the $5.1 million damages claim from Spangenberg. But that only comes into play if the jury finds for TQP. While it may be a bit risky, Newegg seems to be betting big that damages aren't even going to be in play here at all.

Reader Comments

Did not think that one through...

Maybe I'm missing something, but how was implying that the GCHQ also came up with something they claim on the patent supposed to help them? Wouldn't that just be another indication that the 'invention' they're claiming isn't as innovative/creative, and therefor patentable, as they'd like the jury to believe?

Using that argument to try and go after the witness' credibility really seems like a case of aiming at your opponent, but shooting your own foot instead.

While it seems Newegg has got a great lineup of witnesses to back their case, they really should have brought in the last witness as well, as anything that further demolishes the patent troll's argument is all for the better, both for Newegg, and anyone else that might find themselves on the defense against patent trolls in the future.

Re: Did not think that one through...

I recently spent 4 days as part of a pool of people undergoing jury selection. Juries are a true cross section of people. I was amazed at some of the ignorance displayed and how a person could hold on to divergent beliefs that really contradict each other. This lawyer has to, at least, try to discredit Diffie. For someone who doesn't know he is a god in the world of cryptology, showing the he is a liar by claiming to have discovered public key cryptography may actually work. The fact that this actually undermines the plaintiff's case may be lost on most of the jurors. Even though they are well known, you could probably convince someone that Bill Gates, Steve Jobs, and Mark Zuckerberg are all losers because every one of them is a college dropout.

Re: Re: Did not think that one through...

Convince someone that Gates and Jobs are losers because they dropped out of college? That'd be an extremely hard sell, since you'd have to leave out the part where they, um, founded two of the world's most iconic tech companies.

Zuckerberg? Might be a little easier to sell to the jury (since you can bring up the whole spat between him and those two brothers over who owned Facebook), but the lawyers would still have their work cut out for them.

Re: Did not think that one through...

The TPQ council gave away some tidbits, he was focused on "did you not get a valid patent for something that was invented before you?" that was his line of questioning and this will probably be his closing statement, the attack on the credibility of the witness was a crapshot that probably will backfire.

So what he will try to do is not to negate that others invented something before it, but that the patent is a valid one, he knows that patent is full of shite and so he is going for the longshot, trying to make the jury believe that the patent even though others have invented it before it a long time ago is a valid patent.

Questioning the credibility of *Diffie*?

Re: Questioning the credibility of *Diffie*?

Gah... Don't hit Enter instead of Tab in the subject box...

Seriously, though. Questioning Diffie's credibility on cryptography? What's next, New Egg will call summon the ghost of Dijkstra and Fenster will claim he's not a real programmer, because he didn't like using computers?

Just about everyone who takes a security course (and probably most who take a networking course, to be honest) in computer science learns about Diffie-Hellman keys.

The man knows his stuff *solid*. And sure, he doesn't have a masters... he has an (honorary) doctorate. Two of 'em. No need for a full-time academic position - he was in ICANN as a VP in charge of cryptography, developed some of Nortel's cryptography, worked at Sun...

Re: Re:

"Diffie-Hellman keys"

Uh....what?

Perhaps you meant Diffie-Hellman key exchange?

Or where you sleeping during your security/networking course?

Sure, technically; I generally refer to any keys created in a similar fashion as "Diffie-Hellman keys" though. People seem to know what I'm referring to (assuming they're familiar with cryptography, that is).

Re:

Re:

I think he was trying to show that even though someone else invented the system before Diffie he still got a valid patent, and so TQP somehow should have the right to have a valid patent even if others invented the same thing before them.

Re:

The argument appears to be that (a) Diffie's patent was valid, because the prior art (government secret programs) was secret, and not knowable -- and similarly, (b) TQP/Jone's patent was valid, because the prior art (Diffie's, and others) was effectively "secret" (not generally known) at the time.

The problem is that while point (a) is clearly (despite the TQP lawyer's attempt to fudge the issue) true, point (b) is not quite true (though the lawyer tried to flim-flam that as well)

In the end, the jury decision will probably turn on how closely they were paying attention, and on whether they liked one side's particular witnesses and/or lawyers much better than they liked the other's.

Re: Re:

Sigh.

I should do a better job of proof reading before I hit the "Submit" button..

The argument appears to be that(a) Diffie's patent was valid, because the prior art (government secret programs) was secret, and not knowable-- and similarly,(b) TQP/Jone's patent was valid, because the prior art (Diffie's, and others) was effectively "secret" (not widely known) at the time.

The problem is that while point (a) is clearly true, point (b) is not quite true (though the lawyer tried to flim-flam that the specific, relevant details).

In the end, the jury decision will probably turn on how closely they were paying attention, and on whether they liked one side's particular witnesses and/or lawyers much better than they liked the other side's.

Making NEWEGG my primary supplier of electonics

Yeah NewEgg!!! We should all show our appreciation for NewEgg's taking on Patent TROLLS by supporting them big time as opposed to places like Amazon, Dell or others that have done little to fight back. NewEgg is doing the public and society in general a big favor. Wish there were other companies that had balls when it comes to their customers' best interests. Yeah NewEgg!!!

I met Whitfield Diffie many years ago

We were attending the same conference. I had the chance to spend a few minutes with him discussing what I thought was a fairly obscure and difficult problem in cryptography. It turns out that what was largely opaque to me was nearly transparent to him: in an offhand and casual way, he suggested an approach that seemed reasonable.

Six months of hard work later, I discovered he was right.

I'm a fairly smart guy: near-genius IQ, multiple degrees, well-read, etc. But Diffie is in another league entirely: he's not just a heavyweight, he's a frickin' intellectual Godzilla.

So when some two-bit attorney tries to cheapen his reputation by pointing out Diffie's academic shortcomings, what that tells me is (a) he doesn't have the facts on his side and (b) he has no concept who he's dealing with.

You need to complete the chain

Have Mark Zuckerburg or someone explain why this guy is important. The general public has never heard of Diffie, but you can have someone they have heard of explain that he built the underpinnings of the secure internet.

Re: Re:

The difference here is that Edison kept at it until he succeeded. He built on prior art and made a lamp that worked. With the current copyright and patent fiasco, such things would probably die aborning, killed by litigation..